37 F. 825 -

37 F1d 825

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Case Text

.·8IRDSEYE ..,. ·SH4EFj!'ER.

825

remitted to the discretion of congress, which may regulate the same according to its ,own pleasure. And as a result of these principles it has been held that, when the jurisdiction of a cause depends upon a statute, the repeal of the statute takes away the jurisdiction. "And it is equally clear," says the supreme court, "that, where a jurisdiction, conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction." Insurance Co. v. Ritchie, 5 Wall. 544. Upon examining the Ritchie Case, it will be seen that the suit,pending when the repealing act of congress was passed, fell with the repeal of the statute authorizing its institution. And the same principle is announced in Assessor v. Osbornes, 9 Wall. At page 575 the court say: "Jurisdiction in such cases was conferred by an act of congress, and. when thataet of congress was repealed, the power to exercise such jurisdiction was withdrawn, and inasmuch as the repealing act contained no saving clause, all pending actions fell, as the jurisdiction entirely upon the act of congress." To the same effect are the following authorities: U. S. v. Boisdore's Heirs,8 How. 120, 121; Norris v. Orocker, 13 How. 440; Ex parte McChrdle, 7 Wall. 514; Morey v. Lockhart, 123 U. S. 56 et seq., 8 Sup. Ot. Rep. 65; Wilkinson v. Nebmska, 123 U. S. 286 et seq., 8 Sup. Ct. Rep. 120; Sherman v. Grinnell, 123U. S. 680, 8 Sup. Ct. Rep. 260. In the case of Boisdore's Heirs,trUpra, the court express the rtlle in these words: "It is true that this court can exercise no appeliate power over this case unless it is conferred upon it by act of congress. And if the laws which gave it jurisdiction in such cases have expired. so far as regards claims in the state {)f Mississippi, its jurisdiction over them has ceased, although this appeal was actually·pending in this court when they expired." Mr. Chief Justice W AtTE, speaking for the court, in Railroad 00. v. arant, says: "It is equally well settled that if a law conferring jurisdiction is repealed without' any reservation as to pending cases, all such cases fall with the law." 98 U. S. 401. . The case of Sherman v. Grinne.ll, supra, arose under the removal act of March 3, 1887, and the question was presented whether the supreme -court could take jurisdiction on appeal or writ of error if the order to remand was made while the act of March 3, 1875, was in force, but the writ of error not brought until after the act of March 3, 1887, went into The court was of unanimous opinion that jurisdiction did not attach; and it is said: "This is the logical result of what has already been decided. Until the act ill 1875 there was no such jurisdiction. Railroad Go. v. WiswaZl, 23 Wall. 507. The provision of that act giving the juril'ldiction was repealed by the .act of 1887 without any reservation as to pending cases. the proviso in the repealing section haVing reference ·only to the jurisdiction of the circuit court and the disposition of the suit on its merits.' As a consequence of this the repeal operated to take away jurisdiction in cases where the order to remand had been made. but no appeal or writ of error taken, because ·if a law conferring j urismotion is repealed without a reservation as to pending cases, all such cases fall with the la w.' It follows that we have no jurisdiction of this writ of error, it is accordingly dismissed."

FEDERAL REPORTER,

'vol. 37.

'Upon the same subject, says Mr. Cooley: "If a statute providing a remedy is rep!'laled while the proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide; and if it be amended, instead of repealed, the jUdgment pronounced in suoh proceedings must be according to the law as it then stands." Cooley, Const. Lim. (4th Ed.) 449. , The above cases seem to furnish a conclusive answer to the position assumed by counsel for the plaintiff in this suit. ' They insist a considerable sum of money was expended by their client in the preparation of this cause for trial after the order of court of November 5, 1885, was entered, returning the cause here, and that the act of 1887; which authorizes it to be remanded', deprives him of his property without due process of law. It may be proper to remark in this connection that, as disclosed by the record, all the interrogatories filed by the plaintiff in this suit, and the commissions to take the testimony of witnesses, were filed subsequent to the passage of the act of March 3, 1887. The expense incident thereto wastherefore'i4ctured with full knowledge of every provision of that act, including,the, Clause which authorizes the remandiQg of pending cailses to the In the cases above cited costs necessarily accumulated wittl the, litigation, of which, by the ruling of the court, litigants were deprived; but it was not intimated by the court that the existence of that fadt 'constituted a valid dbjection ttl the constitutiob.ality of the law. Costsare inevitable in the prosecution of judicial proceedings. They follow the litigation "as follows principal, or as shadow the substanc.e,", ,And if congress haEi power to confer jurisdiction upon, and withhold it from. the circuit courts at discretion, and ,to regulate the lpanner of its exercise and the practice and procedure of those courts, it cannot be truly said that costs incurred in the cirQuit court upon removal of:1l. cause ,are divested "without due process ,of law" when the same is remanded to the state court pursu.ant to the legislation of congress; that is to say, legislation enacted in obedience to the authorization of the constitution. That the enactment of the clause of the act of March 3, 1887, assailed by the plaintiff in this suit, was a valid e:x:ercise of constitutitional power on the part of congress, admits, in my j:Q:dgment, of no question, , ' It is further objected by the plaintiff's counsel that a remanding of the ,Will leave him as the state court, upon removal of the suit, was absolutely divested of jurisdiction, which cann,ot The of the,supreme court, to which reference. has already been made,would Seem to dispose of that objection. But is it true that no remedy reniains? To properly appreciate the position sumed by counsel, the proposition submitted by them in argument will bilstateq in their own words. "By the removal," they assert, "the jurisof the state court was completely divested, obliterated, lost, and as if the Buit hadnever beencommen<;ed in that court;" and, in support thereof, reference is illlj,de to the following cases: Gordan v. 16 Pet. 97 etseq.; Kanouse v. Martin, 15 How. 208, 209; Insurance Co. v. Dunn, 19 Wall. 223,224; Virginia v. Rives, 100 U. S. 317; Ruill'oad Co.